IN Supreme Court denies motion for rehearing on Indiana’s near-total abortion ban

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A split Indiana Supreme Court has denied the American Civil Liberties Union of Indiana’s motion for rehearing on the state’s near-total abortion ban.

The court issued its ruling Monday.

The ACLU of Indiana had filed for rehearing July 31, a day before Senate Enrolled Act 1 was to go into effect, putting abortion access into a gray area in Indiana. It asked the court to place a temporary injunction back on the statute pending its continued efforts to obtain injunctive relief in the trial court.

When asked for comment, the Indiana Office of the Attorney General referred Indiana Lawyer to its X social media page, where Attorney General Todd Rokita applauded the denial of the motion.

“Great news! The Indiana Supreme Court denied the ACLU’s and Planned Parenthood’s last-second, desperate petition for rehearing to stop Indiana’s pro-life law. This is another win for the lives of the unborn,” Rokita wrote.

On June 30, the Indiana Supreme Court ruled in the case of Planned Parenthood Great Northwest, Hawai’i, Alaska, Indiana, Kentucky, Inc., et al. v. Members of the Medical licensing Board of Indiana, in their official capacities, et al., 22S-PL-00338, that the state’s new statute implementing a near-total abortion ban didn’t violate Article 1, Section 1 of the Indiana Constitution.

Justice Derek Molter wrote the majority opinion for the high court, which found that Article 1, Section 1 protects a woman’s right to an abortion “that is necessary to protect her life or to protect her from a serious health risk, but the General Assembly otherwise retains broad legislative discretion for determining whether and the extent to which to prohibit abortions.”

The law had originally took effect Sept. 15, 2022, but was preliminarily enjoined a week later by Special Judge Kelsey Hanlon after finding the plaintiffs were likely to prevail on their claim SEA 1 violated a woman’s right to privacy under Article 1, Section 1 of the Indiana Constitution.

Justices Mark Massa, Geoffrey Slaughter and Molter concurred in Monday’s denial of the ACLU’s motion for rehearing, as did Chief Justice Loretta Rush with a separate opinion.

“… Section 1 could protect a woman’s right to obtain an abortion under circumstances that extend beyond the current law. Given that possibility, I am deeply concerned about Senate Bill 1’s impact on Hoosier women’s constitutional right to seek medical care that is necessary to protect their life or to protect them from a serious health risk,” Rush wrote. “And I am likewise concerned about the law’s impact on healthcare providers who must determine whether to provide that care and potentially expose themselves to criminal penalties and professional sanctions. But Plaintiffs have not properly put these concerns before us.”

“There is simply no sound legal basis for an interim injunction that is even broader than the relief Plaintiffs intend to pursue in the trial court. And for good reason, our system requires Plaintiffs to first seek their proposed, narrower relief in the trial court, which, unlike our Court, can receive and weigh competing evidence, including expert testimony,” Rush wrote.

Justice Christopher Goff dissented with a separate opinion.

He had also dissented in part to the high court’s June 30 opinion.

“No one yet knows the precise contours of the life and heath protections guaranteed by the Indiana Constitution. But, for the sake of the lives and health of Hoosier women, our healthcare professionals and our justice system need to know as quickly as possible. Having declared the right of a woman to protect her health, this Court should not now let that right go unprotected,” Goff wrote.

Goff also wrote in his dissent that many potential severe medical problems can arise from a pregnancy. He found that seeking medical treatment for them would fall within the constitutional right to protect one’s life and health.

“Accordingly, I would leave a revised statewide injunction in place, restraining enforcement of Senate Bill 1 in circumstances where a physician has determined in good faith that an abortion is medically necessary. This would be for a limited time — perhaps 60 days — so the trial court can hear arguments and evidence and consider whether to enter a new injunction. Maintaining this restriction for now would provide the added benefit of preserving a stable legal environment for women, healthcare providers, and law enforcement. Alternatively, of course, the General Assembly could modify the statute to take account of the concerns expressed above,” he wrote.

According to the Indiana Supreme Court, an appellate clerk will certify the June 30 decision.

Once that certification takes place, abortion will be banned except for limited cases of rape or incest, fatal fetal anomaly or to protect the life or health of the mother.

The case has been remanded to the Monroe Circuit Court.

Jane Henegar, executive director of the ACLU of Indiana, called it a dark day in Indiana’s history as a near-total abortion ban takes effect, in an email to Indiana Lawyer.

“We have seen the horrifying impact of bans like this across the country, and the narrow exceptions included in this extreme ban will undoubtedly put Hoosiers’ lives at risk. We will continue to fight in court to clarify and expand upon the current exceptions. Every person should have the fundamental freedom to control their own body and politicians’ personal opinions should play no part in this personal decision,” Henegar said.

Editor’s note: This article has been updated and corrected.

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